940.02 First-degree reckless homicide.
940.05 Second-degree intentional homicide.
940.06 Second-degree reckless homicide.
940.07 Homicide resulting from negligent control of vicious animal.
940.08 Homicide by negligent handling of dangerous weapon, explosives or fire.
940.09 Homicide by intoxicated use of vehicle or firearm.
940.10 Homicide by negligent operation of vehicle.
940.11 Mutilating or hiding a corpse.
940.12 Assisting suicide.
940.13 Abortion exception.
940.16 Partial-birth abortion.
BODILY SECURITY.
940.19 Battery; substantial battery; aggravated battery.
940.195 Battery to an unborn child; substantial battery to an unborn child; aggravated battery to an unborn child.
940.20 Battery: special circumstances.
940.201 Battery or threat to witnesses.
940.203 Battery or threat to judge.
940.205 Battery or threat to department of revenue employee.
940.207 Battery or threat to department of commerce or department of workforce development employee.
940.22 Sexual exploitation by therapist; duty to report.
940.24 Injury by negligent handling of dangerous weapon, explosives or fire.
940.25 Injury by intoxicated use of a vehicle.
940.285 Abuse of vulnerable adults.
940.29 Abuse of residents of penal facilities.
940.291 Law enforcement officer; failure to render aid.
940.295 Abuse and neglect of patients and residents.
940.30 False imprisonment.
940.34 Duty to aid victim or report crime.
940.42 Intimidation of witnesses; misdemeanor.
940.43 Intimidation of witnesses; felony.
940.44 Intimidation of victims; misdemeanor.
940.45 Intimidation of victims; felony.
940.46 Attempt prosecuted as completed act.
940.48 Violation of court orders.
Ch. 940 Note
NOTE: 1987 Wis. Act 399 included changes in homicide and lesser included offenses. The sections affected had previously passed the senate as 1987 Senate Bill 191, which was prepared by the Judicial Council and contained explanatory notes. These notes have been inserted following the sections affected and are credited to SB 191 as "Bill 191-S".
LIFE.
940.01
940.01
First-degree intentional homicide. 940.01(1)(a)(a) Except as provided in
sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.
940.01(1)(b)
(b) Except as provided in
sub. (2), whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class A felony.
940.01(2)
(2) Mitigating circumstances. The following are affirmative defenses to prosecution under this section which mitigate the offense to 2nd-degree intentional homicide under
s. 940.05:
940.01(2)(a)
(a)
Adequate provocation. Death was caused under the influence of adequate provocation as defined in
s. 939.44.
940.01(2)(b)
(b)
Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable.
940.01(2)(c)
(c)
Prevention of felony. Death was caused because the actor believed that the force used was necessary in the exercise of the privilege to prevent or terminate the commission of a felony, if that belief was unreasonable.
940.01(3)
(3) Burden of proof. When the existence of an affirmative defense under
sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a finding of guilt under
sub. (1).
940.01 History
History: 1987 a. 399;
1997 a. 295.
940.01 Note
Judicial Council Note, 1988: First-degree intentional homicide is analogous to the prior offense of first-degree murder. Sub. (2) formerly contained a narrower definition of "intent to kill" than the general definition of criminal intent. That narrower definition has been eliminated in the interest of uniformity. Section 939.23 now defines the intent referred to.
940.01 Annotation
The affirmative defenses specified in sub. (2) were formerly treated in s. 940.05. This caused confusion because they seemed to be elements of manslaughter rather than defenses to first-degree murder. Sub. (2) specifies only those affirmative defenses which mitigate an intentional homicide from first to 2nd degree. Other affirmative defenses are a defense to 2nd-degree intentional homicide also, such as self-defense, i.e., when both beliefs specified in sub. (2) (b) are reasonable. Section 939.48.
940.01 Annotation
The prosecution is required to prove only that the defendant's acts were a substantial factor in the victim's death; not the sole cause. State v. Block,
170 Wis. 2d 676,
489 N.W.2d 715 (Ct. App. 1992).
940.01 Annotation
The trial court must apply an objective reasonable view of the evidence test to determine whether under sub. (3) a mitigating affirmative defense "has been placed in issue" before submitting the issue to the jury. In Interest of Shawn B. N.
173 Wis. 2d 343,
497 N.W.2d 141 (Ct. App. 1992).
940.01 Annotation
Imperfect self-defense contains an initial threshold element requiring a reasonable belief that the defendant was terminating an unlawful interference with his or her person. State v. Camacho,
176 Wis. 2d 860,
501 N.W.2d 380 (1993).
940.01 Annotation
Sub. (1) (a) cannot be applied against a mother for actions taken against a fetus while pregnant as the applicable definition of human being under s. 939.22 (16) is limited to one who is born alive. Sub. (1) (b) does not apply because s. 939.75 (2) (b) excludes from its application actions by a pregnant woman. State v. Deborah J.Z.
228 Wis. 2d 468,
596 N.W.2d 490 (Ct. App. 1999).
940.01 Annotation
Barring psychiatric or psychological opinion testimony on the defendant's capacity to form an intent to kill is constitutional. Haas v. Abrahamson,
910 F. 2d 384 (1990) citing Steele v. State,
97 Wis. 2d 72,
294 N.W.2d 2 (1980).
940.01 Annotation
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
940.01 Annotation
State v. Camacho: The Judicial Creation of an Objective Element to Wisconsin's Law of Imperfect Self-defense Homicide. Leiser. 1995 WLR 742.
940.02
940.02
First-degree reckless homicide. 940.02(1)
(1) Whoever recklessly causes the death of another human being under circumstances which show utter disregard for human life is guilty of a Class B felony.
940.02(1m)
(1m) Whoever recklessly causes the death of an unborn child under circumstances that show utter disregard for the life of that unborn child, the woman who is pregnant with that unborn child or another is guilty of a Class B felony.
940.02(2)
(2) Whoever causes the death of another human being under any of the following circumstances is guilty of a Class B felony:
940.02(2)(a)
(a) By manufacture, distribution or delivery, in violation of
s. 961.41, of a controlled substance included in schedule I or II under
ch. 961, of a controlled substance analog of a controlled substance included in schedule I or II under
ch. 961 or of ketamine or flunitrazepam, if another human being uses the controlled substance or controlled substance analog and dies as a result of that use. This paragraph applies:
940.02(2)(a)1.
1. Whether the human being dies as a result of using the controlled substance or controlled substance analog by itself or with any compound, mixture, diluent or other substance mixed or combined with the controlled substance or controlled substance analog.
940.02(2)(a)2.
2. Whether or not the controlled substance or controlled substance analog is mixed or combined with any compound, mixture, diluent or other substance after the violation of
s. 961.41 occurs.
940.02(2)(a)3.
3. To any distribution or delivery described in this paragraph, regardless of whether the distribution or delivery is made directly to the human being who dies. If possession of the controlled substance included in schedule I or II under
ch. 961, of the controlled substance analog of the controlled substance included in schedule I or II under
ch. 961 or of the ketamine or flunitrazepam is transferred more than once prior to the death as described in this paragraph, each person who distributes or delivers the controlled substance or controlled substance analog in violation of
s. 961.41 is guilty under this paragraph.
940.02(2)(b)
(b) By administering or assisting in administering a controlled substance included in schedule I or II under
ch. 961, a controlled substance analog of a controlled substance included in schedule I or II of
ch. 961 or ketamine or flunitrazepam, without lawful authority to do so, to another human being and that human being dies as a result of the use of the substance. This paragraph applies whether the human being dies as a result of using the controlled substance or controlled substance analog by itself or with any compound, mixture, diluent or other substance mixed or combined with the controlled substance or controlled substance analog.
940.02 Note
Judicial Council Note, 1988: [As to sub. (1)] First-degree reckless homicide is analogous to the prior offense of 2nd-degree murder. The concept of "conduct evincing a depraved mind, regardless of human life" has been a difficult one for modern juries to comprehend. To avoid the mistaken connotation that a clinical mental disorder is involved, the offense has been recodified as aggravated reckless homicide. The revision clarifies that a subjective mental state, i.e., criminal recklessness, is required for liability. See s. 939.24. The aggravating element, i.e., circumstances which show utter disregard for human life, is intended to codify judicial interpretations of "conduct evincing a depraved mind, regardless of life". State v. Dolan,
44 Wis. 2d 68 (1969); State v. Weso,
60 Wis. 2d 404 (1973).
940.02 Annotation
Under prior law, adequate provocation mitigated 2nd-degree murder to manslaughter. State v. Hoyt,
21 Wis. 2d 284 (1964). Under this revision, the analogs of those crimes, i.e., first-degree reckless and 2nd-degree intentional homicide, carry the same penalty; thus mitigation is impossible. Evidence of provocation will usually be admissible in prosecutions for crimes requiring criminal recklessness, however, as relevant to the reasonableness of the risk (and, in prosecutions under this section, whether the circumstances show utter disregard for human life). Since provocation is integrated into the calculus of recklessness, it is not an affirmative defense thereto and the burdens of production and persuasion stated in s. 940.01 (3) are inapplicable. [Bill 191-S]
940.02 Annotation
Possession of a controlled substance is not a lesser included offense of sub. (2) (a). State v. Clemons,
164 Wis. 2d 506,
476 N.W.2d 283 (Ct. App. 1991).
940.02 Annotation
Generally expert evidence of personality dysfunction is irrelevant to the issue of intent although it might be admissible in very limited circumstances. State v. Morgan,
195 Wis. 2d 388,
536 N.W.2d 425 (Ct. App. 1995).
940.02 Annotation
Utter disregard for human life is an objective standard of what a reasonable person in the defendant's position is presumed to have known and is proved through an examination of the acts that caused death and the totality of the circumstances surrounding the conduct. State v. Edmunds,
229 Wis. 2d 67,
598 N.W.2d 290 (Ct. App. 1999).
940.02 Annotation
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
940.03
940.03
Felony murder. Whoever causes the death of another human being while committing or attempting to commit a crime specified in
s. 940.225 (1) or
(2) (a),
943.02,
943.10 (2) or
943.32 (2) may be imprisoned for not more than 20 years in excess of the maximum period of imprisonment provided by law for that crime or attempt.
940.03 History
History: 1987 a. 399.
940.03 Note
Judicial Council Note, 1988: The prior felony murder statute (s. 940.02 (2)) did not allow enhanced punishment for homicides caused in the commission of a Class B felony. State v. Gordon,
111 Wis. 2d 133,
330 N.W. 2d 564 (1983). The revised statute eliminates the "natural and probable consequence" limitation and limits the offense to homicides caused in the commission of or attempt to commit armed robbery, armed burglary, arson, first degree sexual assault or 2nd degree sexual assault by use or threat of force or violence. The revised penalty clause allows imposition of up to 20 years' imprisonment more than that prescribed for the underlying felony. Prosecution and punishment for both offenses remain barred by double jeopardy. State v. Carlson,
5 Wis. 2d 595,
93 N.W. 2d 355 (1958). [Bill 191-S]
940.03 Annotation
To prove that the defendant caused the death, the state need only prove the defendant's conduct was a substantial factor. The phrase "while committing or attempting to commit" encompasses the immediate flight from the felony. A defendant may be convicted if another person, including an intended felony victim, fires the fatal shot. State v. Oimen,
184 Wis. 2d 423,
516 N.W.2d 399 (Ct. App. 1994), State v. Rivera,
184 Wis. 2d 485,
516 N.W.2d 391 (1994) and State v. Chambers,
183 Wis. 2d 316,
515 N.W.2d 531 (Ct. App. 1994).
